As part of our continuing commitment to provide
outstanding representation and to serve as an information resource, we wish to
inform you of a recent decision concerning the Labor Law.

One of the interesting areas in the Labor Law is the
homeowners exemption under Labor Law Sections 240
and 241. Under the Labor Law, there is a homeowners
exemption which prevents the otherwise absolute statutory liability to “owners
of one and two-family dwellings who contract for, but do not direct or control
the work”. This exception is designed to
protect homeowners who have normal maintenance and/or renovations done to their
one or two-family homes. The exemptions
do not apply to homeowners who use their one and two-family premises entirely
and solely for commercial purposes. A
recent case in the First Department showed the application of this principal.

In Farias v. Simon, the issue was whether the work
that the plaintiff was performing at the time of accident was for the owners’
commercial use of the house. The owners
acquired title to the premises through inheritance in 2004. In July 2005, the owners began
renovations. One of the owners testified
that they renovated the house for the purpose of modernizing it and using it
for a second home. Plaintiff was injured
on October 19, 2005, and at that time, the renovation was ongoing and the house
was unoccupied. In Fall 2006, the
renovation reached the punch list stage and the owners never occupied the
house. The owners decided to lease it
out in Spring 2007, and did so later that summer.

The owners moved for summary judgment arguing that the
homeowners’ exemption shielded them from liability as they did not direct or
control the plaintiff’s work. The
plaintiff opposed the motion, arguing that the owners intended to use the house
solely for commercial purposes. The
Appellate Division granted defendant's motion and plaintiffs appealed. The
First Department affirmed and found that the owners made a prima facie showing
of entitlement to the homeowners exemption by demonstrating that the premises
consisted of a one-family dwelling, and that they did not direct or control the
plaintiff’s work. The Court found that
the plaintiff had failed to produce evidentiary proof sufficient to establish
the existence of material issues of fact. The First Department noted that the
homeowners
exemption hinges upon the site and the purpose of the work, a test which must
be employed on the basis of the homeowners
intentions at the time of the injury. The Appellate Division noted that the
house was leased by the owners almost 2 years after plaintiff’s injury.

The Appellate Division found that plaintiff and the
dissent misplaced their reliance on the subsequent lease which the owners
entered into almost 2 years after plaintiff’s injuries. The Appellate Division rejected plaintiff's argument that the owners would not
have been able to rent the house without undertaking the construction project,
and found that it was irrelevant that the renovation was more extensive than
the owners had originally intended.

In dissent, two judges argued that in order to ascertain
whether the defendants were entitled to the homeowner=s
exemption it required looking into the operation of defendants thought and
decision making processes. The dissent
found that this issue, which necessarily implicates defendants’ state of mind,
is not readily determinable on a motion for summary judgment. The dissent argued that common sense suggests
that credibility determinations are better resolved at trial than on a motion
for summary judgment.

The majority decision appears to be correct since the
house was rented two years after plaintiff's accident. Because there was a two judge dissent, this
case may be appealed to the Court of Appeals for a definitive ruling.